ARK.] WHITE. RIVER BRIDGE CORP. V. STATE: 485 Wnrrr RIVER BRIDGE CORPORATION V. STATE. 4-4022 Opinion delivered March 23, 1936. 1., EMINENT DOMAIN.—Although not parties tO the proceeding bond-holders under a mortgage on a toll bridge are bound by a consent judgment in condemnation proceeding, where the trustee for such bondholders was before the court and consented to the judgment. 2. EMINENT DOMAIN— JUDGMENT.—Judgment in proceeding to 'condemn toll bridge in which state assumed payment of bonds is not • void upon its face because payment : to bondholders was not 'provided for therein before the state should take possession . - of • property. 3. CONSTITUTIONAL LAW.—There is no denial of due process in viola-. tion of Amendment 14 to the Constitution of the United States where, in an action to condemn toll bridge, the action is institnted in . a properly constituted tribunal and proper inquiry is made as to amount of coMpensation due. Appeal from Prairie Circuit Court, Southern Dis-.trict; TV. J. Waggoner; Judge; affirmed. . . Martin Fulk, Henry Bonham ', Guy Amsler and Lee Miles, for. appellants. Carl E. Bailey, A.ttorney General, Leffel Gentry and Walter L. Pope, for apPellee. , J;-.1= 'y way of interventioD, filed their joint and several motion to vacate a certain judgment of the Prairie Circuit Court made and entered September 18, 1930, in which actibn the State of Arkan-sas was plaintiff and the White River Bridge • Corpora7' tion and the New York Trust Company were defendants. The judgment sought to be vacated is as follows: ' `Now on this day comes the plaintiff, the State of Arkansas, by its Attorney General, Hal L. Norwood,...and by Pace & Davis nnd W, Robins, its attorneYs, and: comes tbe defendant, the White River Bridge, Corpora-
486 WHITE RIVER ' BRIDGE CORP. V: STATE. [192 tion, a corporation organized Under the laws of the State of Dela-Ware, by Robinson, Honse & Moses, its attorneys,' and comes the defendant, The . New York Trust CoMpany, a corporation organized and existing under the laws of the State of New York, by Robinson, House & Moses, its attorneys, and, by consent of all parties made in open court, the following finding and judgment , is made, rendered and entered bY the court,' to:Wit Tbe court finds that tbe defendant, the White River Bridge Corporation, is the owner of the . following real estate and property, to-wit: A right-of-way 100 feet wide oh each side of the following line : Beginning at.a.: point 277 feet east of •the southeast corner of the northwest quarter of section 17, township 2 nOrth, range 4 west; thence 76 degrees and 30 seconds east a distande of. 594 feet; thence east 200 feet to the west bank . of White River ; and also beginning at a point 726 feet north of the quarter section corner between sections 16 and 17, township 2 north; range 4 west; running thence south 45 degrees and 20 minutes west a distance of 1,056.feet; thence 'weSt 300 feet to the. east bank of, the White.River. " 'And alSo the bridge across White River near De-Valls Bluff, Arkansas, at a point on White River where same is crossed by highway No. 70, including toll house, approaches, and all apPurtenances thereunto belonging, said bridge, right-Of : way and 'other property desCribed above being all located in Prairie County, Arkansas. . . "And also franchise and privilege of operating .said bridge.granted . to Harry E.,Bovay.and his successors and assigns by an act.of Congress of the United States, entitled 'An Act to Authorize , the Construction of a. Bridge. Across White , River in Prairie County,:' approved No-vember 23, 1921, which franchise has passed by assignment to the said defendant. "And also the franchise granted to Harry E. Bovay by order of the county court of 'Prairie County for the construction and operation of the above-mentioned bridge, which order appears of record in Prairie County court record "T," pages 267 and 273, which franchise
WHITE RIVER BRipoh, Coiii. % V. STATE. 4$7 as amended . • as passed by assignment to the said defendant. ' "And the court' further findS. that by deed ,of trust, dated May 1,..1928, appearing Of record • in 'Mortgage record book 20, ,page 1, of: the •reCords Of Prairie ,COunty, the .defendant, the :White River Bridge..Corporation; has conveyed,• niortgaged and pledged • the' above-described bridge, franchises, right-Of-way :and Other properties' to secure certain, bonds. therein .described, of which bonds there now remains outstanding $463,000; and the court finds that there i§. •no lien -or mortgage upon the _ above-described property excePt . for the above-mentioned bonds now outstanding and secured by -the above-described deed of trust. - • "And• the court ; finds . that' the value of said bridge, franchises, right-of-way :and all Other' propertieS above described; owned by the.; defendant, the Whité-1 RiVer : Bridge 'Corporation, iS $403,000 ; that the . -plaintiff, -the 'State of ArkansaS; 'is entitled under the law' to .cOndenin, take possession of, 'hold,. owh and operate- the abOVe-described-bridge, franchise, right-of=Qvay and other pr6p-erties on and after . November 1, 1930, upon the payment Of the sum of o . ne . ' dollar *to 'the defendant, the White RiVer . Bridge CorpOratien, and s upon the payment' when same shall mature Of the : balance . due on . the abeve-men-t' .ioned and . described bends secnied by. the above-described deed of 'trust, executed by the . defendant,. the. White River Bridge . CorPoration, to the 'defendant, the New .York trnst 'Conipany, oh , May 1, 1928. . .. "It . .is accordingly br the e,ourt -considered, ordered and adjudged that the defendant,,the White 'River Bridge ,Corporation,, do :have of .and recover from the .plaintiff, the State s of Arkansas, the . sum -of one dollar damages, which, . together •ith . the assumption : by •the , State of the: above-mentioned. ; and described bonded, indebtedness, shall be ,in full payment' and compensation for. the. taking of the aboye-described bridge, .franchises, . right-sof-way and other properties.as set forth above and owned by ,the .defendant, the ..White . River - Bridge. Corporation:, and that the said bridge, franChises, right-of-w.ai ,and • other
488 WHITE RIVER BRIbGE . CORII . T. ' STATE. [192 • properties be and the same are hereby condemned for public use and the title thereto divested out of 'said defendant, tho White River Bridge. Corporation, and invested in the State of Arkansas, for use and operation by its Highway Commission in such manner and under such terms as the said Highway Commission may deter-, mine, and that the State of Arkansas shall, in accordance with the terms of the above-described deed of trust , assume and pay to the holders of the outstanding bonds, aggregating $463,000 and interest due November 1,• 1930, and thereafter, provided, that the defendant, the White Rivet Bridge Corporation, shall have the right at its•own risk and , expense to retain the possession of the above-described bridge and other properties until the firSt day of November, 1930, and during said period to collect the tolls therefrom, and during said period the said defendant shall maintain said bridge •and Other properties in a good state of repair at its own expense , and shall promptly on the first day of November, 1930, deliver to the plaintiff . the possession of said bridge and other prop- e].ty in. as good state of repairs as same are now in." The motion to vacate, in effect, alleged: that the in-terveners are holders and owners of certain bonds issued by the White River Bridge Corporation on May 1, 1928, which said bonds Were secured by a first mortgage upon the bridge, lands and other . properties owned and . posSessed by said bridge company, and thk the NeW York Trust •Company is the duly designated trustee therein; that the Prairie Circuit Court entertained jurisdiction of and entered a judgment in favor of the State and against' the bridge company and all the property, both real and personal, owned by 'said bridge company and upon which 'appellants' mortgage lien existed, condemning said properties for public uses, although appellants were not parties to said litigation and had no .notice thereof that said judgment of the Prairie Circuit *Court condemning appellants' property for •public uses as Afore• said appears to be void upon its face because it does not expressly provide compensation to the owners in advance • of the taking thereof, as required by amendments Nos.
ARK.] WHITE RIVER BRIDGE 'CORP. V. STATE. 489. 5 and 14 to the Constitution of the United States, and. by § 22 of. article. 2 . of the •Constitution of this State. Other matters : were alleged in the • motion to vacate, but they are not deemed of..sufficient importance as to require being set out in detail. A demurrer Was interposed and sustained .to the motion to vacate, .and, from a. consequent order dismissing same, this appeal comes. 4Ppellants first contention i that they Were .nat parties to, and had no notice of, the condemnation proceedings in the Prairie Circuit Court, and for . this reason they ate not bound thereby: Admittedly, apPellants were. not in'petsOn 'before the court in the condemnation pro-, ceedings, but the New York Trust Company; fhe ttustee in appellants.' mortgage, was before the court in personam and by counsel., 'This is teflected upon the face • of the judgment. Under facts and circumstances identiCal with those alleged by : appellants, this 'contention was' expressly decided by us adversely to appellants' contention in Wat-son v. Dodge, 187 Ark. -1055, 63 S. W. (2d) 993. We'there said i."Respondents •expressly 'and irrevoeably Consented to' the vesting of the title in the State of Arkansas: And, in lieu of Cash, through their representatives, the truStee in the mortgage, irrevocably accepted the solemn pledge oflhe State to pay the bonds held by respondents as they matured." The, respondents referred to in the ease just cited were two bondholders and owners of , the White River Bridge Corporatiou bonds, as appellants are, and we . there . expresSly decided that they were parties to the condemnation proceedings, being represented- therein the trustee in, the Mottgage. See In. Re Engelhard' & Sons Co., 231 U. S. 646, 34 S. Ct.. 258, 58 L. Ed. 416. :Appellants next assert that the condemnation judgment appeatS to be void upon its. face because it does not provide payment to the •owners before the taking of the property. This contention was presented and likewise decided adversely .to appellants' contention in the case last. referred to. In referring to this contention it was there said : "In the condemnation proceedings the owners made no demand for cash paid down, but expressly cop-
490 WHITE RIVER BRIDGE CORP. V. STATE.' [192 sented and agreed to acCept . the . Soleran piedge 'of the State to asSinne and pay tho outstanding bond§ as they matured. It is not to be dmibted that the sovereign State will ultimately discharge the 'obligation. , Conditions not at all peculiar to this State, and of which all persons have knowledge, render the discharge of the obligation inapos-sible in the time and manner contemplated when the property was condemned. But; even so, the. State ac= quired, and now has, title to the property, and the former owners have the, obligation of the State to pay, and we must therefore hold,, notwithstanding the . , equity of the case, that these. former ewners have no : right to have a receiver appointed to take possession of ; property , owned by the State."' , ; ,The language just Teferred . to and qiioted is full' authority . for the , position that the State of Arkansas acquired title to the bridge and all Property connected therewith belonging to • the White River Bridge:Corporation,' the Now York' Trust Company, and appellants; as bond : oWriers;` and • we . perceive no ! necessity to again consider and discuss the inerits' of the . controversy:: If the bond owners in Watsen Dodge,' supra, Could not.invoke: the incidental relief of- receivership as against the State's title , to the bridge and properties, then certainly appellants, who stand in the 'identical position occupied by Mayo, et al., maY not recover the property from the State. Appellants' , contention that ihe condemnation' judgment of the Prairie Circuit COUrt ii'viOlative of constitutional 'Mandate is , , likewiSe Without merit. Had such been its effect, we Would have , So: decided in Watson v. Dodge, supra, because neither' the State nor any one else can prediCate riglat's upon or under a 'void' judgment or order. Moreover, • in condemnation proceedings under constitutional law it is esSential only that the jurisdic-: tion of sonie proPerly Constituted tribunal be invoked in some apprepriate Way, and that' inquiry shall be made as to , the amonnt of 'compensatiOn ; and when these things are . done,"dne"proceSs : of as required by the Federal ConStitutinn, had been afforded. Bacens v. FoUrth Street Union Depot, 169 U. 5.'557; 18 S. Ct. 445,
ARK.] 491 48 L. Ed. 853 ; . Josii3 O Mfg. Co. .v. Providence, 262 . U. S. 668, 43 S. Ct. 684;67 L. Ed. 1167. Section 22 . of article 2 .of . the Constitution of . this State,. cited . suprg, is not infringed ' by the Condemnation judgment,.. ' , In . effect, .we have so decided many, many times. Par4gould v.112-,ilnei, 114 Ark. 334, 170 S. W: .:78 •; . "DickersOn v TriLCOunty Draindge District, 138 . Ark. 471; 212 S. W. 334. • • • ' • It follow's• from:what We• have said thkt the 'Prairie ' Ciralit Court • Was . 'correet in deCi.ding that ' appellantS' motiOn : t6 vacate the conderrinaiiOn' judgment of 'Septem-ber 18,•1930, was without•Merit and dismissing it.' NO error , ' . afriiiehring, the jUdginent iS'affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.